Prosecutors' record of abuse of power to delay bail - Court Watch
8/2012Veritas
April 25, 2012

Release
of Accused on Bail Repeatedly Thwarted by State

Misuse
of the Law [Section 121(3) of the Criminal Procedure and Evidence
Act]

Section 121(3)
of the Criminal
Procedure and Evidence Act [CPE Act] enables the Attorney-General
or his representative to have an accused person who has just been
granted bail by a judge or magistrate kept in detention for up to
seven days simply by telling the court that he or she wishes to
appeal against the grant of bail. This provision has been misused
so often that there is now a move to have it repealed by Parliament.
The motion for permission to introduce a Private Members Bill to
do this is currently in the House of Assembly. It is timely therefore
to look at this part of the law, how it has been misused and how
it has detracted from the justice system.

What
Section 121(3) Says:

Section 121(3)
provides that if a judge or magistrate reaches a decision to grant
bail to an accused person, this is automatically suspended if, immediately
after the decision, the judge or magistrate is notified that “the
Attorney-General or his representative wishes to appeal against
the decision”. The effect of this suspension is that the accused
person must remain in custody for a further seven days while the
Attorney-General or his representative decides whether or not to
appeal.

If an appeal
is lodged within 7 days, the accused person continues in detention
until the appeal is decided

[Note: Where
an appeal is lodged, it should, because it concerns personal liberty,
be decided by the judge dealing with it, whether in the High Court
or the Supreme Court, within a few days of its lodging. The relevant
rules of court require expeditious processing of such appeals.
In practice, unfortunately, appeals can take far longer than a
few days; for examples, see below.]

If an appeal
is not lodged within 7 days the accused person must then be released
on bail.

If, before
the 7 day period expires, the prosecutor notifies the court that
the State has decided not to appeal, the accused person must be
released immediately, i.e., before the end of the 7 days.

An Abuse
of the Justice System

The way section
121 (3) has been used by prosecutors has amounted to an abuse of
the justice system:

Usurpation
of the judicial role Section 121(3) in practice has taken a judicial
function away from judges and magistrates and allowed the Attorney-General
representing the State, which is an interested party, to arbitrarily
overrule, albeit temporarily, a judicial decision arrived at after
hearing evidence and submissions from both accused and the State
prosecutor.

Violation
of right to liberty Frequently the effect of the section in practice
is that an accused person remains an extra seven days or more
in gaol on the prosecutor’s mere say-so.

Violation
of the principle of equality of all before the law The statistics
also show that since April 2008 this largely groundless use of
section 121(3) has been almost invariably directed against:

human rights
activists, and

political
activists who are either members or supporters of MDC-T or proponents
of views opposed to those of the former ruling party.

Comment: Any
statutory provision that lends itself to arbitrary application is
contrary to principles of good law. That section 121(3) has often
been used arbitrarily without any real thought having been given
to whether or not there is any basis for a State appeal is indicated
by the number of cases in which the State has not even gone through
the motions of lodging an appeal – and by the State’s
abysmal, near-zero success rate on appeal – see figures below.

Figures

[Veritas thanks
ZLHR for permission to make use of their copyright material.]

out of the
30 cases listed by ZLHR in which section 121(3) was invoked, the
State actually appealed in only 7

of those
7 appeals, 6 were entirely unsuccessful, resulting in the release
of the accused persons on the conditions originally granted

in the single
case in which the State had a partial success, its application
for leave to appeal to the Supreme Court succeeded in respect
of only one the three accused persons involved.

Note: Far more
than 30 individuals were involved in these cases, because some of
them featured multiple accused, e.g. the case
involving Hon Douglas Mwonzora MP and 22 co-accused from his MDC-T
party.

Origin
of Section 121(3)

Section 121(3)
first appeared in the CPE Act in 1975, before Independence. It is
widely perceived therefore as a colonial hangover originally designed
to empower prosecutors to take oppressive action against accused
persons from the oppressed majority during the liberation struggle.

Constitutionality

The constitutionality
of section 121(3) has been raised in at least two cases, both of
which still await set-down for hearing in the Supreme Court after
referral to that court by magistrates in terms of section 24 of
the Constitution:

MDC-T Director-General
Toendepi Shonhe fell victim to the provision in June 2009. He
appeared before a magistrate charged with perjury and was granted
bail. The prosecutor invoked section 121(3) and Mr Shonhe was
kept in remand prison for an additional eight days until a judge
dismissed the State’s appeal and he was released. Meanwhile,
Mr Shonhe’s lawyer had applied to the magistrate for the
constitutionality of section 121(3) to be referred to the Supreme
Court and the application was granted by the magistrate. Nearly
three years later the Supreme Court is yet to deal with the case.

MDC-T MP
Douglas Mwonzora and 22 co-accused MDC-T members were arrested
in February 2011 on charges of public violence allegedly committed
following an MDC-T meeting in Nyanga. When the Nyanga magistrate
granted them bail a few days later, the State invoked section
121(3), resulting in all 23 remaining in custody for 25 days until
their release following the dismissal of the State’s appeal
by a High Court judge. In this case, too, the magistrate acceded
to a defence request to refer the constitutionality of section
121(3) to the Supreme Court.

Section
121(3) Most Frequently Used in Magistrates Court

Inevitably section
121(3) is invoked far more frequently at magistrates court level.
This is because in most cases accused persons first appear in the
magistrates court following arrest by the police, and magistrates
have power to grant bail on most charges [except for certain particularly
serious offences]. If after invoking 121(3) in the magistrates court,
the Attorney-General follows up by lodging a formal appeal –
then that appeal is heard in the High Court.

Also
Used in High Court

The Attorney-General
has also used section 121(3) where bail has been granted by High
Court judges. For example:

After MDC-T
Minister of Energy and Power Development Elton Mangoma was arrested
on 25th March 2011 on a charge of abuse of public office, Justice
Kudya granted him bail. The prosecutor immediately invoked section
121(3) and followed this up with an application for leave to appeal
to the Supreme Court [when bail is granted in the High Court a
State appeal against it has to be heard in the Supreme Court].
On 4th April the prosecutor’s application to leave to appeal
was heard by Justice Musakwa, who threw out the application as
having no merit and ordered Mr Mangoma’s immediate release.
As it was Mr Mangoma had remained in custody for 11 days. If leave
to appeal to the Supreme Court had been granted, it would in fact
have meant Mr Mangoma being detained for much longer.

Section
121(3) was also invoked against a decision of Justice Ndou granting
bail in the Mthwakazi Liberation front treason case in Bulawayo.

Judicial
Condemnation

The December
2011 remarks of Justice Mathonsi, dismissing a State appeal against
bail granted to three Media
Monitoring Project of Zimbabwe staffers arrested
in Gwanda, are instructive: ‘Section 121(3) ... gives the
appellant (the Attorney-General) power to veto the grant of bail
to an accused person ... To the extent that it interferes with the
liberty of a person who has been admitted to bail, that discretion
should be exercised judiciously because the legislature, in its
wisdom, entrusted the appellant with huge powers. For that reason,
it is unacceptable for any representative of the Attorney-General
to shoot up the moment bail is pronounced and invoke section 121
without applying his/her mind to the basis for such invocation.
I have said that there is no merit in the grounds of appeal, which
do not show any misdirection at all on the part of the court a quo.
In fact those grounds are legendary by their lack of merit. One
is therefore left wondering whether the appellant’s representative
did apply his mind at all. The abuse of section 121 to keep persons
in custody who have been granted bail has tended to bring the administration
of justice into disrepute. It must be discouraged by all means and
the time has come to announce to law officers prosecuting on behalf
of the Attorney-General that section 121 should be invoked only
in those situations where there is merit in the appeal ... Persons
who have been properly granted bail should not be kept longer in
custody merely as a way of punishment. That is an improper exercise
of the discretion given to the Attorney-General by section 121.”
[Text of full judgment available from veritas@mango.zw].

Impact
on Accused

Incarceration
in remand prison involves much more than loss of liberty. Conditions
in Zimbabwe’s prisons are so notoriously bad that a spell
in remand prison routinely exposes a prisoner to appallingly unhygienic
conditions, the risk of disease, overcrowding, lack of proper diet,
lack of adequate medical treatment, etc. – there have been
numerous protests about inhuman conditions in the country’s
prisons. Often there is a loss of income, particularly in the case
of the self-employed. And the disruption of a detainee’s normal
family life inevitably leads to worry and stress for parents, spouses
and children, and friends. After the relief to the accused, their
family and colleagues of being granted bail, to have this relief
immediately cancelled by a spurious invocation of section 121(3)
can be devastating.

Some
High Profile Cases where the State Invoked Section 121

Bennett
Case

Senator Roy
Bennett was arrested
on sabotage and weapons charges on 13th February 2009. He was granted
bail by a High Court judge 11 days later, but remained in custody
when the prosecutor invoked section 121(3). The State’s appeal
to the Supreme Court went ahead but was dismissed by the Chief Justice
on 11th March. Mr Bennett had spent nearly four weeks in custody,
with a gap of 15 days between the initial decision to grant him
bail and the dismissal of the State’s appeal. He described
the conditions in the Mutare Remand Prison as “the worst I
have ever experienced”. [Note: In May 2010 Mr Bennett was
acquitted on the sabotage and weapons charges at the close of the
State case in his High Court trial.]

Hon
Elton Mangoma

A side-effect
of Hon Mangoma’s extended stay in remand prison was his inability
to carry out his duties as an MDC-T negotiator in important GPA
talks; because of the timing, some have suggested this was the intended
effect of the action taken against him.

Christmas
in gaol for Lynnette Karenyi MP

In a more recent
case Hon Lynette Karenyi, MDC-T MP for Chimanimani West, had eight
days in custody courtesy of section 121(3), missing Christmas with
her family. Arrested on 19th December on a charge of insulting the
President, she was granted bail by a magistrate on 20th December,
and only released on 28th December after the prosecutor failed to
lodge an appeal.

Gandhi
Mudzingwa and 6 other abductees

In April 2009,
Mr Mudzingwa and 6 of the other abductees were finally granted bail
by a High Court judge after over three months in remand prison [and
varying periods of unlawful State detention as “disappeared”
persons before they were initially taken to court]. The prosecutor
ensured another 7 days of detention by invoking section 121(3) –
and then failing to lodge any appeal.

Cases of long
delay before release There are several examples of prolonged detention
pending hearing and decision of appeal:

Eric Matinenga
[2008]

Shortly after
the March general election, Eric Matinenga, newly elected MDC-T
MP for Buhera West [later to be Minister of Constitutional and Parliamentary
Affairs in the Inclusive
Government] found himself was arrested
on allegations of public violence shortly after he had obtained
a High Court order directing the Zimbabwe Army to stop harassing
people in his constituency. A magistrate granted bail and the prosecutor
invoked section 121(3). As a result Mr Matinenga was kept from his
busy practice as a leading advocate, and from his party duties,
for some four weeks. It took that long for the State’s appeal
against his bail to finalised; the appeal was dismissed. At his
later trial on the public violence charge Mr Matinenga was acquitted.

Douglas
Mwonzora MDC-T MP for Nyanga North, and 22 co-accused MDC-T members
[2011]. This group was in custody for 25 days until a High Court
judge dismissed the State’s appeal. One of the accused,
Headman Nyakauru, aged 82, was denied access to private medical
practitioners and his health deteriorated rapidly, resulting in
his death a few weeks after his release. Mr Mwonzora’s prolonged
absence from his duties as COPAC co-chairperson for the MDC-T
undoubtedly slowed progress in the constitution-making process
at a crucial time.

Conclusion

The cases show
that magistrates and judges, having heard evidence and argument
from both prosecutor and defence, are better able than prosecutors
to make a balanced, rational decision on the merits of granting
bail and any risks attached. It is the prosecutors who have frequently
been shown to have acted hastily, arbitrarily or unwisely and unfit
to wield the power given them by section 121(3). The reality seems
to be that section 121(3) is both unnecessary and irredeemably open
to abuse.

Magistrates
and judges should be trusted to make responsible use of their powers
to grant or withhold bail to accused persons. And prosecutors should
be deprived of their present power to block release on bail by simply
saying the State wishes to appeal.

MP’s
Bid to Introduce Bill to repeal Section 121(3)

When the House
of Assembly adjourned on 28th March for a six-week recess, it was
only part of the way through debating Hon Gonese’s motion
asking the leave of the House to introduce his Private Member’s
Bill to repeal section 121(3) of the Criminal Procedure and Evidence
Act. Debate is due to continue when the House resumes sittings on
15th May. The House has yet to hear the views of the Minister of
Justice and Legal Affairs, who is the Minister responsible for the
Criminal Procedure and Evidence Act, on Hon Gonese’s proposal.
Only if the motion is approved will Hon Gonese be permitted to hand
in his Bill for official printing and gazetting and subsequent consideration
by the House.

A chance to
lobby MPs to support the repeal bid The present Parliamentary recess
– through to 15th May – presents an opportunity for
lobbying MPs. Now is the time to make sure that when they come to
vote on Hon Gonese’s motion as many MPs as possible are aware
of the feelings of their constituents and civil society organisations
on whether this much-criticised statutory provision should be retained
on the statute book. At this point in the debate MPs seem to have
split along party lines – with MDC-T MPs supporting Mr Gonese
and giving numerous examples illustrating the State’s abysmal
record in its use of section 121(3) and the consequential injustice
suffered by the individual citizens concerned; and ZANU-PF defending
it as in some way essential to prevent anarchy and chaos and the
commission of serious crimes, but without giving any examples of
cases in which section 121(3) has actually been effectively used
for these purposes.

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